This is the fifth in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix 5 to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

Because LASPO was concerned with civil legal aid, and because the most glaring defects in the criminal justice system ought to be self-correcting once their existence and their seriousness is more widely appreciated, the Commission confined its treatment of criminal justice issues to problems concerned with means testing and legal aid contributions, and also with the so-called tax on innocence  –  when people who are denied legal aid on financial grounds after applying for it and who cannot possibly secure alternative representation on the open market at legal aid rates, are limited to recovering costs on that very restricted basis after the charge against them has been dismissed.

For this reason the very full description of criminal justice issues in Appendix 5, which deserves very careful study, is much longer than the comparatively brief treatment afforded to them in the Report itself.

 

1. EXTRACT FROM THE REPORT

Legal Aid Contributions

 

The commission has also heard specific concerns about the contributions system for criminal legal aid. There is a means test for legal aid eligibility in both the magistrates’ court and the crown court. The threshold for legal aid is £22,325 of gross household income, although defendants whose assessed household income is between £12,475 and £22,325 have to pay contributions towards their costs.[1] These contributions, whose make-up is never explained, can be very high: the level of monthly contributions demanded sometimes exceeds the cost of the case, and frequently exceeds the client’s ability to pay.[2] In such cases clients will either be forced to represent themselves or, if they can, they may come to an arrangement with their solicitor to pay privately at a discounted rate.

The government should consider how to simplify and clarify the means testing process in criminal courts, and review the level of contributions made. This should focus on reducing the number of litigants in person; and ensuring that the level of monthly contributions is affordable and significantly below the costs of the case. Everyone charged with a criminal offence should have equality of arms in the presentation of their defence.

We have also had representations from a number of criminal practitioners who highlighted problems with defence costs orders. Acquitted defendants who paid private rates because they were ineligible for legal aid are only reimbursed their costs at legal aid rates. This leaves innocent people significantly out of pocket because of the disparity between legal aid and private rates. The commission proposes that anyone ineligible for legal aid should be reimbursed at a level broadly commensurate with the lower end of solicitors’ guideline hourly rates.[3] This change would reverse the so-called ‘tax on innocence’ that acquitted defendants currently encounter.

 Evidence requirements

The evidence requirements for both the civil and criminal legal aid assessments are unnecessarily onerous, and the LAA is too rigid in its approach. Applying for criminal legal aid and undertaking the means test is so complex that it often requires cases to be adjourned while evidence about income is gathered.[4] There can be particular problems in extradition cases, where often defendants are paid in cash and cannot provide proof of earnings.

 

2.     APPENDIX 5

Chapter 11: Criminal Justice

Introduction

In this paper the Commission will provide a snapshot of the main themes that emerged from the evidence it received on criminal justice issues. Inevitably some respondents wished the Commission to range more widely (to include, for example, examining the continued usefulness of areas of substantive law which tend to clog up the courts), but in what follows it will be concentrating on its main task – to see whether citizens are being afforded appropriate rights of access to justice in the criminal courts today, and if not, what should be done about it.

 The scene in the criminal courts today

Bill Waddington,[5] a very experienced criminal defence solicitor from Hull and a former Chair of the Criminal Law Solicitors’ Association, told the Commission:

What works and what doesn’t work in the current Legal Aid scheme? Well, what works I think I can answer in one line which is that the defence side of things works. I am not sure that anything else actually works in the system at the moment, and I am not being too cynical about that. I think that is probably fairly accurate. What doesn’t work? There isn’t enough time in the rest of the year for me to talk in enough detail about what actually doesn’t work in the system. I think the experience of everybody here who is in the criminal justice system would probably say about much the same thing.

The Prosecution side fails, I think, almost completely in everything they try to do. That isn’t because of the quality of the staff, but I think it is lack of resources, I think it is maladministration, I think it is constant imposed changes upon them and so on. The Court system is probably at the lowest ebb, I think, that I have ever seen it at in all my years, in that it’s slow, it is cumbersome. Much the same with the Crown Court… Listing in the Crown Court is just a complete and utter farce. It has never been very good, but nowadays, it is absolutely appalling. It is all geared around box ticking, because cases have to be listed within a certain period of time and if they are listed – that means “put in the list” – then the box is ticked. It doesn’t matter if they subsequently come out of the list, because the box is ticked, because it was listed within the specified time frame.

And so on. The Commission received very similar evidence from the present chair of the Criminal Law Solicitors Association (CLSA), from the immediate past president of the London Criminal Courts’ Solicitors’ Association (LCCSA) and from the Society of Labour Lawyers,[6] as well as from a handful of other witnesses.

The troubles now besetting our criminal justice system are multi-factorial. They all stem from successive governments’ determination to reduce the cost to the taxpayer of our arrangements for achieving criminal justice. In this endeavour cost-cutting has all too often been given priority over the interests of justice. Serious problems have resulted from a combination of cuts to the police budget, cuts to the CPS budget, cuts to HM Courts Service’s budget and successive heavy cuts to the remuneration of practitioners funded by legal aid. At the same time there has been a drive to reduce the incidence of adjournments and “cracked trials” by introducing more sophisticated arrangements for pre-trial management, a determination to resist adjournments wherever possible, and the introduction of attractive inducements to defendants to plead guilty at the first possible occasion.

These reforms and cuts have been accompanied by a very distinct deterioration in the quality of criminal justice – with the concomitant risk that innocent people may be convicted of crimes they did not commit; or may decide to plead guilty through a fear of a harsher sentence if they are convicted following a “not guilty” plea; or because they will be financially worse off if they are acquitted following a contested trial than they would be if they pleaded guilty at the outset. And there are now very strong grounds for concern that young practitioners on both sides of the legal profession are not being attracted into the ranks of criminal defence lawyers because the pay and the working conditions are so unattractive.[7]

In Appendix II[8] there is an outline description of some of the methods used by successive governments prior to 2010 to bring criminal legal aid expenditure under some kind of control. These attempts continued under the new Coalition Government, but any root and branch changes were strenuously and successfully resisted by practitioners, and the government suffered a series of setbacks between 2010 and 2016 in their efforts to make further economies. There has been outright resistance to competitive price tendering of the type supported by Lord Carter’s Review more than ten years ago, or to any efforts to introduce an enlarged “public defender” scheme, even though experience in some other jurisdictions has shown that such a system, if well-regulated, has certain advantages.[9]

Given the turbulent history of the last ten years the Commission sees no merit in recommending further radical change of a kind that would be hotly resisted by the legal profession. On the other hand, there are significant improvements that can be made to the present lamentable arrangements, so long as the goodwill of the profession is harnessed and so long as the government is willing to engage consistently in constructive discussions with practitioners on ways to remedy the most serious of the defects existing today[10].

The police and the CPS

Two complaints surfaced again and again in the evidence we received about police and/or prosecutorial practice. The first relates to the police practice of saving money by inviting people to attend a police station for a chat (as opposed to arresting them) and then obtaining incriminating admissions in the absence of a solicitor. The solicitor’s absence does not result from any failure to explain the interviewee’s rights but because, in ignorance of the dangers, the interviewee prefers to proceed directly to an interview rather than wait an indefinite length of time for a previously unknown lawyer to come and advise him.

The second – which might arise from prosecutorial failings just as much as from failings by the police – relates to problems arising from late disclosure or non-disclosure of prosecution evidence. In a climate in which issues of this kind could be cured by an adjournment or by a judicial determination to exclude evidence it would be unfair to admit these shortcomings might not matter so much, but where there is such a determination to avoid adjournments and where failures in prosecution disclosure are so widespread that dangerous criminals would go free if judges were scrupulous in excluding evidence unfairly disclosed long after the due date (and some of it during the course of the trial itself) there are obvious risks to the integrity of the justice system.

The vigorous complaints the Commission received from defence lawyers have been amply confirmed by the Crown Prosecution Inspectorate. In a report published in June 2017 it noted that the duty of disclosure was complied with fully by prosecutors in only 56.9% of applicable cases within the file sample – an improvement from the previous inspection when only 34.8% of cases met expectations. It said that CPS disclosure was hampered by the standard of police compliance with their disclosure requirements: in the current inspection this fell below the required standard in 40.7% of cases. In 19.5% of these cases the police did not provide a schedule, in 18.5% the items were poorly described and in 15.4% they were wrongly listed.[11]

So far as the CPS is concerned, Raj Chadra, a very experienced criminal defence lawyer, told the Commission:

The CPS has been a failing institution for a number of years. We have to face up to that. Often you receive no response if you write to them. Five years ago as a defence lawyer I would have said that it was the CPS who should receive more funding.   Today defence services are equally overworked and under-resourced – pretty much as badly as the CPS. This is a real problem. You cannot prepare a case properly if the CPS does not respond to your correspondence.

And this despite Lord Justice Leveson’s observation in his Review which stated that “part of the solution to improving the efficiency of the whole system is to acknowledge the critical role that the defence can play”.

The harnessing of technology

There has been a significant increase in the deployment of different applications of modern technology in support of criminal justice. While it is introducing some very distinct advantages, the evidence the Commission received shows that it has also brought in its wake some very distinct disadvantages[12]: what happens when the video link to court breaks down or is otherwise unavailable, or when the links to the repositories of vital information are hard to access, or are simply not working? All too often these deficiencies result in defence practitioners being unpaid (either for their time or for their travel expenses) when cases have to be postponed, or in the defendant being prejudiced because of the court’s insistence that a hearing should proceed even when the defence still lacks vital information through no fault of its own.

The CLSA told the Commission:

The technology breaks down a great deal, there are frequent staffing problems which prevent its use delaying justice and keeping courts, lawyers and, more importantly, people in custody waiting. Lawyers are often stacking around video conference booths like aircraft around Heathrow whereas before we could all be seeing our clients at the same time in different cells or conference rooms.

Criminal proceedings: the initial police interview

Attention has already been drawn to a police practice of securing an interview with the defendant in which they obtain damaging admissions in the absence of a solicitor (because the defendant sees no value in waiting for a lawyer to attend). This may happen when, in ignorance of the law relating to reasonable self-defence, a defendant who is ashamed of his involvement in an act of violence makes self-inculpatory admissions of a kind that will make it very difficult for his/her lawyers to undo the damage when they are eventually instructed. Another is when the police obtain admissions from a young adult who is clearly suffering from learning disabilities in the absence, not only of a lawyer, but even of the appropriate adult to whose presence he is legally entitled.[13]

Bill Waddington again:

What I have found over the years is that people who are appearing for the first time and the only time in their lives come before the courts, are absolutely horrified at the experience. That is from the moment when a friendly Police Officer either knocks on the door or rings them up to say we would like you to come into the Police Station for a chat, which happens in most cases nowadays because it is cheaper for the Police to get people to come in voluntarily, rather than for the Police to go out in the car and arrest them. So, they ask them to come in for a chat. Most people think it is a chat, and they get to the Police Station at a pre-arranged time and the Police get them into the Police Station, they say we are not arresting you but we are going to interview you. You are under caution, here are your rights.

You can have a solicitor, it can be free, but we are ready to go now and it will be hours before we can get a solicitor here and you’ve got nothing to worry about, so shall we crack on?

Now we hear that, day in, day out, from clients and so, we can assume from that, that it is actually true, and that it is only the very, very wise who think for themselves after the police have rung them “well, maybe I ought to ring a solicitor and see what the situation is.” They then take somebody along with them. Only the very wise have somebody with them at that first interview.

Alternatively, a young person may be detained at a police station for a very long time without the police attempting to contact a solicitor. Jonathan Black[14] told the Commission:

Last week I was night duty solicitor between 11 pm and 8 am, in the North London scheme. I was called out at 11.30 pm. A 15-year old girl had been in custody since 1 pm, for an alleged credit card theft. She had not been questioned. Her mother would not come to the station, her father could not be contacted, and her grandmother could not come, either. Social services were contacted at 11 pm, and said that she must have a lawyer first. Then they couldn’t get anyone to come to the station until the morning. So she was interviewed next morning. She had a perfectly reasonable explanation. There was nothing in the allegation and she was released.   It is not acceptable that we are tolerating a situation like this. It is not justice, and currently other players in the system have no access to justice.

Duty solicitors

This is not to say that the quality of duty solicitors is uniformly good. The Commission received very strong submissions from both Richard Miller (The Law Society) and from the CSLA about serious deficiencies in the current procurement arrangements.

By way of background, Jonathan Black told the Commission:

PACE introduced a solicitors’ advice scheme in police stations. Solicitors needed an incentive to go to the police station when they got a call from a custody sergeant. Nobody wanted to do it.   It was not glamorous work.

Solicitors were then incentivised to do the work by relatively generous hourly rates, higher rates for evenings and weekends, and different rates for different types of offence. There was an enhanced rate for murder cases, for which a solicitor would be paid properly. This meant that quality representation was provided for those who were most at risk and in need of proper representation. People were being paid properly, and were enabled to take time for the task and ensure proper disclosure.

Things improved still further after the Cardiff Three case.^[15] Accreditation was introduced to prevent a re-occurrence of the problems in that case. Quality representation was always to be key.

The duty solicitor scheme was seen by some as a means to an end. Newly qualified young solicitors wanted to achieve duty solicitor status for their self-respect, if nothing else. They had autonomy over their cases and could decide how they were run, and they were not at the beck and call of supervisors.

… From 2008 onwards there was an attempt to control the cost of police station payments by introducing a fixed fee scheme. This was not welcomed by the profession. Corner-cutting took place to minimise the time spent in the police station, so as to balance off the hours of dead time. The fixed fee constituted a reward for getting in and out of the police station quickly. When the police messed you about and forced you to wait several hours, you might be too far from your office to go back to it, and this constituted dead time. You might have to wait all night for an appropriate adult.

This swings and roundabouts system didn’t do justice any favours. In making savings in one place, they were running up costs elsewhere, as a National Audit Office report made clear. Mistakes were being made elsewhere as a result of cuts in justice.

Julian Hunt, an experienced criminal defence barrister, told the Commission:

In the magistrates’ courts, in particular, I have also observed more and more ropey duty solicitors clearly doing one or two days a month as a pension filler or some sort of pin money hobby. A small but dangerous minority cannot frankly be bothered to do anything other than this rush job usually due to the demands on their time and it is interesting to see in the last few years more and more clients tell me they don’t “trust” or “want” the duty solicitor. I have dealt with clients given disastrous advice at police stations who then come and see me privately when it is often too late – the worst examples being the number of clients who have been told by a police rep (who has passed a few simple exams and is then able to advise vulnerable individuals in police stations which is terrifying) to accept cautions as it will then just “be over and done with” without thinking of the other consequences of a criminal conviction and when in the circumstances it is patently not right to accept the caution.^[16] Access to justice means access to a motivated, qualified professional and competent lawyer, not some unqualified non-solicitor rep cadging around £80 a hit (after the firm has taken their fee) for police station work. I should say that I don’t blame the rep or firm at all but the increasing lack of quality control and the terrible fees that mean this sort of incompetence / “get ‘em in; get ‘em out” attitude is becoming more frequent. It stems from a systemic lack of funding in the system.

The service of a summons and the first hearing before magistrates

After the interview with the defendant, there can be an extremely long delay before anything else happens.[17] Then a summons may be served, with a first hearing date five or six weeks away.   If a solicitor was present at the interview, he/she will have made a note of what was said. On the other hand, if first instructed long after the interview took place, there may be the greatest possible difficulty in obtaining any details of what occurred until a few days before the first hearing – and very often not until the hearing itself, as Bill Waddington described:

There is a court date four to six weeks away. The solicitor is left saying, “Well okay I’ll take instructions from you but I don’t know what the prosecution case is because we weren’t at the interview, and strangely enough, even though it was six months ago, I can’t get hold of the prosecution evidence until a maximum of five working days before the first court appearance, in theory.” In reality, I can’t be told of it until the morning of the hearing because my email to the CPS requesting the initial details of the prosecution case (IDPC) won’t be answered until the morning of the first hearing, when it’s mayhem at court, because courts now funnel people, not into five-day court sittings, but in our area – it could be different in others – but in our area Monday and Thursday are the dates when first timers are funnelled into court.

So, all your clients are turning up there, some of whom you have not seen before and didn’t know were even appearing. Some of whom you have seen but you haven’t been able to discuss the evidence with them and then you start emailing, from court, to the prosecution hub to get the evidence sent to you. When the evidence arrives, the initial details of the prosecution case should mean “Well we will have a summary of the facts and we’ll have a summary of what the client said in the interview and we might have a statement or two.” A statement from the complainant we would expect, or something like that, and if there was a medical injury, a statement of what the medical injuries were, that’s what you ought to get.[18] What you actually get, in most cases, is probably a page, or a page and half, a very sketchy summary of what is alleged and what your client has said in interview. You can’t get an adjournment, adjournments simply don’t happen in the magistrates’ courts because it delays the justice system. It’s very ironic, considering your client has been on bail for six or eight months, but you can’t get one, so, it’s either guilty and full credit, or it’s not guilty and lose your credit.

He explained that in his local court, if a defendant pleads not guilty, he/she is transferred to the district judge, who will customarily warn the defendant that if the plea is maintained, he will be the trial judge and that if the defendant is convicted at trial he/she is at risk of a custodial sentence which would not be the case following an immediate guilty plea. This often leads to a change of plea and to the defence lawyer being worried that his client has been bullied into entering a plea which does not reflect the reality of the case.

This desire to obtain an early plea, whatever the surrounding circumstances, was reflected in the evidence of Zoe Gascoyne (CLSA) who told the Commission of a complex and serious case in which her client offered a plea of guilty for misconduct over a two-year period, rather than the five years for which she was being charged. She said that she told the prosecutor:

“Listen, the instructions we can get to date on the paper work that we were provided with, shows that this lady accepts guilt in relation to this particular matter over a 2-year period.”

In the past the CPS would have thanked her for the information and said they would re-examine their evidence in the light of it. As it was, in view of the pressure on all parties for an early resolution of every case, they instantly accepted the plea. Zoe said:

Now is that justice? It might well be, and I would say that it was a fair result for my client because her instructions were just that she was guilty for that period, but if she had not been guilty for that period and been guilty for the full five-year period, it’s not justice.   The Crown Prosecution Service is literally folding because they don’t want to go into Court to have to say to the Judge “Do you know what, your Honour, we need more time on this.”

Andrew Keogh told the Commission of a case in which his client was charged with a driving offence in which the victim suffered catastrophic injuries. Because the case had been incompetently prepared, the most potent piece of prosecution evidence could only be viewed on the prosecutor’s laptop in Court, which the magistrates refused to look at. They also refused to adjourn the case. As a consequence, the summons was dismissed, with the victim no doubt feeling that a very great injustice had occurred.

Cases transferred to the Crown Court: the first hearing

If a case is transferred to the Crown Court, the first hearing will customarily take place a few days later, when there will be the same emphasis of the desirability of an early plea.[19] Bill Waddington told the Commission:

Bear in mind, the prosecution has everything on their laptop. The Judge has everything. The defence, even at that stage in the Crown Court, have very little information. I suspect that the judiciary thinks that we actually have the full paperwork because we should have. That is what the criminal procedure rule indicates we should have, and the judiciary just think we are messing about if we say ‘Well, we haven’t had all the paperwork or we haven’t seen it or whatever.’ So, that is the situation that we face on a daily basis.

Jonathan Black observed:

Committal proceedings were abolished in about 1998 for indictable-only cases which were transferred straight to the Crown Court. You can only submit ‘no case to answer’ at the case management stage in the Crown Court. This is seldom done. It was a useful tool in the past. Prior to this change these cases were challenged in the magistrates’ court.   Now all ‘triable either way’ cases are transferred immediately if the magistrates decline jurisdiction or if the defendant elects Crown Court trial.   Now there are Plea and Trial Preparation hearings when there is often only a limited opportunity to make a challenge. We are required to enter a plea at a time when there has been minimal disclosure of information.   As a result we can only submit “no case” when the case is proceeding towards trial. There would be huge costs savings if the prosecution evidence could be challenged at an early stage.

This is another untoward consequence of the pressure to dispose of cases quickly and cheaply.

Listing in the Crown Court

The present listing arrangements for Crown Court hearings, including trials, came under severe criticism. In the old days the relevant clerk at the Crown Court would meet the representatives of the parties, and any serious case would be given a fixed date which would be selected, whenever possible, because the chosen advocates on both (or all) sides were available. Now, due to a combination of factors – a lack of appropriate resources at the Crown Court, a rationing system for judicial availability, the lack of consideration for the convenience of defence lawyers, or simply the all-pervading pressure to list cases as soon as possible – this tradition has come to an end, particularly in London, where even rape cases may be placed on a warned list. This means that they may be listed at any time during the listing window, or not at all.

It is clearly impossible for a busy advocate to empty his or her diary in the hope/expectation that the case may be called on early during the listing window, and advocates receive no remuneration for pre-trial preparation for cases in which they do not in fact appear at trial. Instead, the client may well meet on the day of the trial an advocate whom he/she has never met before, who has had to prepare for trial from scratch in a very great hurry.[20]

Listing inadequacies do not only present problems for the parties to a case and their advocates. They may also cause great hardship to complainants and to witnesses. Bill Waddington described a historic sex case in which his client had been arrested in 2014, bailed for a further interview in April 2015, and eventually charged towards the end of that year, with the initial hearings taking place in January and February 2016, with the case being listed for trial in July 2016. It was adjourned then due to lack of court time and re-listed for trial in March 2017, when it was again adjourned, this time until January 2018 (although the trial date was later brought forward to October 2017). The complainant and the witnesses have now attended court and been sent away again twice, and the case will have taken 3½ years if it comes to trial next time.

Expert witnesses

The Society of Labour Lawyers told the Commission that there were many recent examples of cases (up to and including murder cases) where the retention of a medical expert had proved extremely difficult. These difficulties arose not only from the problem of finding experts of suitable calibre who were willing to work for legal aid rates (meaning that those that do are exceptionally busy and therefore difficult to instruct) but also, once such an expert is identified, because of disputes with the Legal Aid Agency (LAA) over the funding.

The Commission agrees with them when they say there is a need for professional and expert witnesses of the appropriate quality for both the prosecution and the defence in a multitude of cases. This need is not being adequately met at present. Poor fee payment, the plethora of warned lists and last minute requests add, for example, to the burdens of doctors who are already running clinics and are under unsustainable levels of pressure in terms of their ordinary day job. This in turn mitigates against finding sufficient high calibre experts willing to take professional instructions.

Zoe Gascoyne described the problem in graphic terms:

There are huge problems in getting experts. The rates are appalling. We should take cases back to court and say we can’t get an expert. We have to have one, but there is no one in this field who will do a report for the money on offer. That’s not justice. The defendant needs a report but is denied one because of the situation we are in. Because we can’t get a report and we have to report back to court, the timetable is out of the window.

Problems with disclosure

If parties always complied with the guidance set out in the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (2013) [21] no significant problems should arise. Unhappily, as has already been observed, both the police and the CPS often fall short of what is required of them. Joanne Cecil told the Commission:

The disclosure regime, I think, is actually a very dangerous one right now. It’s completely underfunded and misunderstood, certainly within the Magistrates’ Court. I don’t know if you found that, Bill, at all, but I certainly see a difference between the disclosure regime in the Crown Court and the Magistrates’ Court.

 At the Magistrates’ Court it simply doesn’t exist, notwithstanding the whole disclosure review that was conducted [22] and the papers that were put out and so on and so forth. Those issues are still arising time and time again. And that leads to real potential miscarriages of justice for obvious reasons, because that is where, often exculpatory or undermining material actually lies. So, there are real difficulties with that.

And there are real issues within the disclosure process in the Crown Court in terms of whether it is counsel reviewing the items or a disclosure officer reviewing the items or a CPS reviewing lawyer or paralegal reviewing the items.

The quality of the review varies quite dramatically. Even in the most serious cases, in one I’m aware of at the present time there are some huge disclosure issues.  So, the disclosure process is key and it’s an incredibly serious case. In that case I’m aware that the Crown, including leading and junior counsel, have not reviewed the material themselves. And as a consequence of subsequent issues there is more and more that is being disclosed.  

I’ve been, myself, in a case where both individuals were convicted on conspiracy to murder charges and appealed to the Court of Appeal. Their conviction was quashed on the basis that the case presented by the Crown at trial could not be factually right and accurate, and there were issues that were being raised throughout that trial and in the Court of Appeal over disclosure of certain material. They ordered a retrial.

We began the retrial with, I think, disclosure request No 56. And three weeks in, the Crown offered no evidence. We still do not know why. We have a suspicion as to what that material was but no confirmation. The case was referred to the Attorney General by the High Court Judge in an extremely unusual step. The Attorney General has declined to review it. He simply took the report from the Crown and said “We see no further need to review the case and consider the position.” We still do not know what the problem was, but we believe it must have been within the disclosure process. And so, that is a case involving very experienced Queen’s Counsel for all parties, junior counsel, disclosure officers, a joint police force operation, and with profound ramifications, involving life sentences for these individuals.

Another case, which was a terrorism case I’m aware of, was where a forensic service report from the Miscarriage of Justice Unit within the Forensic Services team itself was never served at all on the defence, notwithstanding the fact that it undermined the key aspect of their forensic evidence in the trial.

The means test in criminal courts

Access to justice has very different connotations in relation to criminal justice as opposed to civil justice. In criminal justice, those who are prosecuted have no choice as to whether to face justice. It follows that access to criminal justice ought to ensure that everyone, regardless of their means, has “equality of arms” in the process.

The best way of trying to achieve equality of arms is to ensure that all those who want legal advice and advocacy have access to it, and that that access is not at a punitive cost.

Means testing in the magistrates’ courts was introduced about ten years ago following a media storm after a Premier League footballer had received legal aid on a charge of spitting on a football pitch. With some exceptions, eligibility for legal aid is now governed by a person’s means. In magistrates’ courts the threshold for legal aid is £22,325 disposable household income. In those courts full legal aid is either granted or refused.

In the Crown Court, the threshold is now £37,500 disposable household income, although defendants whose disposable household income is between £12,475 and £37,500 have to pay contributions towards their costs. These contributions, whose make-up is never explained, can be very high: the level of monthly contributions demanded sometimes exceeds the cost of the case, and frequently exceeds the client’s ability to pay. [23] In such cases clients will either represent themselves or, if they can, they may come to an arrangement with their solicitor to pay privately at a lower rate than normal.

Bill Waddington described to the Commission the practical effect of this innovation in the magistrates’ courts:

There are certain urban areas where means testing makes no difference whatsoever, because the clientele has never worked. It will never work and it has all been on passported benefits, so it is no problem at all. There are certain areas, and Hull is one, where there are an awful lot of self-employed people. The minute a self-employed person walks through the door wanting representation in a criminal case, you know you are in for a hard time trying to get legal aid because a window cleaner, a taxi driver, somebody who works three day a week for his builder friend, just does not have wage slips, bank accounts, books of account, and so on and so forth.

So, you either do something that is extremely foreign to the criminal lawyer and say “I’m really sorry, we won’t be able to help you on this occasion, so just go next door and see whether they can help you”, or else, more than likely, you will say, “Look, you are never going to get Legal Aid, but I will help you out. We will do as much as we can,” and so on and so forth.

Jonathan Black (LCCSA) suggested that because means-testing is such a complex process in the magistrates’ courts, justice requires that cases should be adjourned while the complexity of a defendant’s means is being collated and put before the LAA.   Costly adjournments, however, themselves carry a high cost, and this cost would hugely counter-weigh the savings derived from denying legal aid in magistrates’ courts, where the fee is £220 for a guilty plea or £360 for a trial.

In a contrast to the usual arrangements the courts will appoint a lawyer on private fee rates to represent a defendant for cross-examination purposes in the circumstances provided for in sections 36 and 38 of the Youth Justice and Criminal Evidence Act 1999. This lawyer will submit a bill for £400-£600, properly billed and claimed.

The means test in extradition cases

Another issue relates to means testing in extradition cases, which go to the Westminster Magistrates’ Court.   Typical clients include many East Europeans for whom a European Arrest Warrant has been issued for a minor crime in their home country.   Most are not passported for benefits.   As self-employed painters and decorators they earn cash, and it is often impossible to obtain proof of their earnings if they are remanded in custody.   As a result they are remanded week in and week out.   Some of them can employ a lawyer privately, but often they are within the criteria for legal aid.   They need to provide proof of what they earn, but there is often a language barrier and an interpreter cannot be provided unless there is legal aid.   Many of these cases reach a final hearing and then have to be adjourned while the legal aid position is sorted out.

Access to restrained assets for payment of legal aid costs

The Society of Labour Lawyers observed that the Proceeds of Crime Act 2002 prohibits a defendant in criminal proceedings from using their restrained assets to contribute towards the costs of their legal advice and representation. As a consequence, many defendants who would ordinarily have been ineligible for legal aid are forced to rely on it.

They suggest that the prohibition on using restrained assets to fund legal representation should be lifted. The individuals involved are sometimes inordinately wealthy. In the alternative, they say, the prohibition could be amended to allow the costs of a defendant’s representation to be recovered by the Legal Aid Agency from restrained funds as they are invoiced, or as a priority debt from the sums recovered in confiscation proceedings following conviction.

Unrepresented defendants

Unrepresented defendants in the criminal justice system present a multitude of problems, not least in cases involving vulnerable witnesses. Any hope of achieving efficiencies within the system is negated when a defendant appears without the benefit of representation.   The charity Transform Justice has published research[24] which shows that many people who are not particularly wealthy are excluded from criminal legal aid. They are thus faced with either representing themselves or paying privately for a lawyer. Those who represent themselves in criminal courts are at a significant disadvantage and this leads, they say, to their receiving tougher sentences, and to minor and major miscarriages of justice.

As evidence for this conclusion, the Introduction to the research contains three particularly telling quotes:

“I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice” (prosecutor)

“The magistrate probably thinks if [someone] is stupid enough to represent himself he’s probably guilty… Going unrepresented certainly hinders any defendant, without a shadow of a doubt” (prosecutor).

“What should come out is my huge disapproval and I can’t help that…having seen the difference between having good representation and [not]… I want to go home at the end of the day feeling that I’ve made appropriate disposals, appropriate decisions, where the outcome has been fair, and unfortunately you can’t” (magistrate).

The thrust of this research is succinctly summarised like this:

What is clear is the cost to justice – interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up cross examination of witnesses, and getting tougher sentences because they didn’t know how to mitigate. Most advocates felt more and better access to legally aided lawyers was the only answer.

The Society of Labour Lawyers observed that unrepresented defendants and litigants are an unacknowledged cost that surfaces in the budget of HM Courts Service as judges waste hours in trying to be both advocate and tribunal, causing other cases to be delayed, only for such cases to surface again on appeal, because self-represented defendants either were, or felt that they were, disadvantaged in trying to represent themselves.

Reimbursement of costs on an acquittal at legal aid rates

A minority of people pay privately for lawyers in the criminal courts. Some do so through choice (because they think they will get a better quality service), others because they are excluded from access to legal aid because they are above the means test threshold or because of the type of charge they face.   Lawyers working privately charge considerably more than they would be paid under legal aid. Whether they are convicted or acquitted the private payer loses out financially. If they are acquitted or if the case against them collapses, they can be reimbursed the equivalent of legal aid fees. In the Crown Court, defendants can only obtain this level of reimbursement if they applied for legal aid in the first place and were turned down. This curiosity of the current arrangements attracted a lot of publicity when a former Deputy Speaker of the House of Commons, Mr Nigel Evans MP, was acquitted at the end of a long high profile Crown Court trial and found himself £130,000 out of pocket.

This is another area which Transform Justice has been interested in illuminating.[25] One case is cited in which a defendant had to face two trials before being acquitted. He was saddled with irrecoverable costs of £120,000, which included a bill for £5,000 to cover the transcript of the first trial.

The Legal Aid Agency

Practitioners in the criminal justice field were just as critical of the LAA as their peers in the civil and family justice fields. Typical comments included:

“We have many systems that are not fit for purpose. We have problems with them. The Bravo e-tendering system was one, and the Portal (through which we have to submit applications for legal aid funding) is another. We couldn’t access the Portal for a long time, and it is now partially down quite often. We are told ‘You need to log in for seven minutes at a time’, but if you have your client with you and you are not being paid this is unrealistic. Huge savings could be made on the administrative side of the LAA’s operations.”

“It used to take two minutes to complete a 4-page legal aid application form. Even with a passporting benefit, it takes 30 minutes online, if you can get on. The portal breaks down regularly. A solicitor is at a busy court, with 10 clients and lots of evidence to go through.”

“The change to a civil service body has meant that they won’t communicate. No effective dialogue with the profession. The defence community are not part of the conversation. The MOJ will throw money at pilot schemes and hope that enough people will volunteer. There is a perpetual state of war, driven by the desire to save money.”

Other common issues relating to the LAA’s operations are fully discussed elsewhere.

Recommendations

The Commission has furnished this snapshot of the evidence it received because it believes that the parlous condition of our criminal courts needs to be more widely understood. In its view the defects are so glaring that they cannot simply be remedied by trying to apply sticking-plaster to the most obvious of the wounds. A more strategic approach is needed, which can be summarised under four main headings:

 The Lord Chancellor must have a clear constitutional duty to provide reasonable access to justice (including criminal justice), for which he must be accountable;

There must be a well-resourced independent body with a responsibility to lay reports before Parliament, which will then have an evidence base on which to hold ministers to account;

There should be minimum standards for defence representation, on which defence lawyers should be able to insist; and

There should be urgent reform of the Legal Aid Agency, including the level of fees paid for different aspects of criminal work.

 

[1] Legal Aid and Advice (Financial Resources) Regulations 2013, reg. 18, S.I.2013/47. Accessed September 2017: http://www.legislation.gov.uk/uksi/2013/471/pdfs/uksi_20130471_en.pdf

[2] Bill Waddington told the commission of a case in which a couple’s assessed household income was only £2,500, yet after one month bailiffs arrived unannounced to enforce payment of the first of six monthly instalments of £500, despite the fact that the defendant had not been told what to pay or whom to pay it to. In the event the defendant decided to represent himself, rather than continuing with a liability for monthly payments which he could not afford.

[3] HM Courts and Tribunals Service. (2010) Solicitors’ guidelines hourly rates. Accessed September 2017: https://www.gov.uk/guidance/solicitors-guideline-hourly-rates. For example, £146 an hour is the rate outlined in the guideline rates for cases in the most affordable parts of the country, with relatively inexperienced practitioners (Band C, where Band A is the most expensive and Band D is the least expensive).

[4] Evidence of Jonathan Black (London Criminal Courts Solicitors’ Association), appendix 1 at p. 74.

[5] He is himself a member of the Commission.

[6] Their written evidence was more or less identical to the evidence of the criminal group in Garden Court Chambers

[7] Details will be found in Chapter 14: “Legal aid lawyers: the effect of LASPO”.

[8] Henry Brooke. (2016) A History of Legal Aid 1945-2010. Appendix 6 to this Report.

[9] See the evidence of Professor Roger Smith about the arrangements in United States federal courts.

[10] The stop-start history of constructive engagement over the last five years, a period which has seen no fewer than five Lord Chancellors in office, was one of the most depressing features of the evidence the Commission received.

[11] HM Crown Prosecution Inspectorate. (2017) Business as usual? A follow-up review of the effectiveness of the CPS contribution to the Transforming Summary Justice Initiative. See now The CPS Inspectorate and the Inspectorate of Constabulary (2017) Making it fair – a joint inspection of the disclosure of unused material in volume Crown Court cases. Accessed September 2017: http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/ 

[12] Raj Chadra told the Commission: “It is very good that court papers are now to be accessible digitally, but the digitalisation does not extend to the defendant in custody. They forgot about him. Here the burden of cost is being shifted to the defence with no additional recompense.   Recently we were served with 10,000 pages digitally, and we tried to get a laptop for our client in prison so that he could view them. We were told that there were insufficient resources to fund this.”

[13] In her evidence Zoe Gascoyne (Chair, LCSA) gave a vivid description of her inability to achieve justice for an 18-year old with severe learning difficulties who had made admissions during a police interview of this kind about a sexual act towards a 12-year old girl whose significance he was almost certainly incapable of appreciating. Since the girl would not give evidence, there was no evidence against him apart from his admission, and a previous solicitor had advised him to plead guilty as soon as possible.

[14] The immediate past president of the LCCSA.

[15] On an appeal in 1992 against a conviction for murder, the interview tapes were listened to for the first time and the Lord Chief Justice (Lord Taylor) said of the interrogation of one of the appellants that “short of physical violence, it is hard to conceive of a more hostile and intimidating approach by officers to a suspect”.

[16] “My favourite example is a minicab driver I represented whose licence was revoked by TFL. He lost his living after seventeen years as an honest, decent cabbie. He had been accused of taxi touting and had a strong defence (surprisingly) but the duty rep at the police station told him to take the caution for taxi touting to get him in and out. It meant that he automatically lost his cab licence due to the TFL zero tolerance policy and one cannot go behind the caution. I tried my best with the magistrates on his TFL licence appeal but it was all hopeless. Cheap is dear as my father says – very dear, indeed.”

[17] Jonathan Black (LCCSA) suggested that if defence lawyers were permitted to make representations to the CPS during the review they will conduct after a defendant has been bailed, there would be far fewer erroneous charging decisions.

[18] By Rule 8.2 of the Criminal Procedure Rules, when the defence requests initial details of the prosecution case, they must be served as soon as practicable and in any event no later than the beginning of the first day of the hearing.

By Rule 8.3, if the defendant is on bail, these details must include a summary of the circumstances of the offence, any account given by the defendant in interview, whether contained in that summary or in another document, any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence, the defendant’s criminal record, if any, and any available statement of the effect of the offence on a victim, a victim’s family or others.

[19] The commission was told that practitioners often misdescribe the Plea and Trial Preparation Hearing (PTPH) as the “Pressure to Plead Hearing.”

[20] Raj Chadra told the commission that a member of the team who prepared the evidence for the Society of Labour Lawyers had been working up to 3 am the previous night, without suggesting that this was in any way out of the ordinary.

[21]Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Protocols/Disclosure+Protocol.pdf

[22] Judiciary of England & Wales. (2014) The Magistrates’ Court Disclosure Review.. Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2014/05/Magistrates%E2%80%99-Court-Disclosure-Review.pdf .

[23] Bill Waddington told the Commission of a case in which a couple’s joint disposable household income was only £2,500, yet after one month bailiffs arrived unannounced to enforce payment of the first of six monthly instalments of £500, despite the fact that the defendant had not been told what to pay or whom to pay it to. In the event the defendant decided to represent himself, rather than continuing with a liability for monthly payments which he could not afford.

[24] Transform Justice (2016) .Justice denied? The experience of unrepresented defendants in the criminal courts. Accessed September 2017: http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf :

[25] Transform Justice. (2015) Innocent but broke – rough justice? Accessed September 2017: http://www.transformjustice.org.uk/wp-content/uploads/2015/10/TRANSFORM-JUSTICE-INNOCENT-BUT-BROKE.pdf